Karnataka High Court
Sri S K Vishwanath vs Sri R Murugan on 25 July, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 806 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 806 OF 2015
BETWEEN:
SRI S K VISHWANATH
S/O LATE SRI. KRISHNAIAH
AGED ABOUT 55 YEARS
R/AT No.3988,"B" BLOCK
7TH CROSS, 1ST MAIN ROAD
GAYATHRI NAGAR
BANGALORE - 560 021.
...APPELLANT
(BY SRI PRADEEP NAIK K, ADVOCATE)
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI AND:
Location: HIGH
COURT OF
KARNATAKA SRI R MURUGAN
S/O SRI RAMAN
AGED ABOUT 55 YEARS
R/AT No.3267/'A', 6TH CROSS
GAYATHRI NAGAR
BANGALORE - 560 021.
...RESPONDENT
(BY SRI H MANJUNATH, ADVOCATE)
THIS CRL.A. IS FILED UNDER SECTION 378(4) OF Cr.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
10.04.2015 PASSED BY THE LXIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, CCH-65, BENGALURU CITY IN
CRL.A.No.711/2014 ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.
ACT AND CONFIRM THE JUDGMENT AND ORDER DATED
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CRL.A No. 806 of 2015
16.6.2014 PASSED BY THE XIII A.C.M.M., BANGALORE IN
C.C.No.29010/2011 AND ETC.,
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR)
1. This appeal is filed by the appellant -
complainant praying to set aside the judgment of acquittal
dated 10.04.2015 passed in Crl.A. No. 711/2014 by LXIV
Additional City Civil and Sessions Judge, Bengaluru and to
confirm the judgment of conviction dated 16.06.2014
passed in C.C. No.29010/2011 by XIII Additional Chief
Metropolitan Magistrate, Bengaluru.
2. Case of the appellant - complainant is that he
knew the accused and during first week of September
2009 the respondent - accused availed Loan of
Rs.3,00,000/- from appellant - complainant agreeing to
repay the same with interest at the rate of 2% per annum.
The respondent - accused failed to repay the said loan
amount and thereafter in order to repay the loan amount
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issued cheque dated 28.01.2010 for a sum of
Rs.3,00,000/- drawn on Indian Bank, Malleswaram
Branch, Bengaluru. On presentation of the said cheque the
same came to be dishonoured with an endorsement
`funds insufficient' in the account of respondent - accused
Thereafter, the appellant - complainant got issued legal
notice to the respondent - accused. Inspite of service of
said notice, the respondent - accused did not repay the
cheque amount and therefore, complainant had initiated
proceedings against respondent - accused for offence
under Section 138 of the Negotiable Instruments Act (for
short hereinafter referred to as the `N.I. Act') and a case
came to be registered in C.C. No. 29010/2011. The
appellant - complainant, in order to prove the case, has
examined himself as P.W.1 and got marked Ex.P1 to
Ex.P.10. The statement of the respondent - accused came
to be recorded under Section 313 of Cr.P.C. The
respondent - accused summoned bank official and
examined him as D.W.1 and got marked Ex.D.1 and
Ex.D.2. The trial Court after hearing the arguments raised
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points for consideration and after appreciating the
evidence on record convicted the respondent - accused for
offence under Section 138 of the N.I. Act and sentenced
him to pay fine of Rs.3,05,000/- and in default to pay the
fine amount, to undergo simple imprisonment for a period
of 6 months. The respondent - accused had challenged the
said judgment of conviction dated 16.06.2014 passed in
C.C. No. 29010/2011 by the XIII Additional Chief
Metropolitan Magistrate, Bengaluru by filing an appeal
before the Session Court in Crl.A. No. 711/2014. The first
Appellate Court after hearing arguments on both sides,
had raised points for consideration and after re-
appreciating the evidence on record has allowed the
appeal and set aside the judgment of conviction passed in
C.C. No. 29010/2011 and acquitted the respondent -
accused for offence under Section 138 of the N.I. Act. Said
judgment of acquittal passed by the first Appellate Court
has been challenged by the appellant - complainant in this
appeal.
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3. Heard learned counsel for appellant -
complainant and learned counsel for respondent - accused.
4. Learned counsel for appellant - complainant
would contend that the amount has been lent by the
complainant to the accused out of the advance amount
received for sale of his property. Even though the sale has
taken place on 26.03.2010, the appellant - complainant
had received the advance amount prior to that date out of
which he had lent Rs.3,00,000/- to the respondent -
accused. Said sale deed is produced at Ex.P.10. The
respondent accused had taken up two defences; (1) that
notice is not served and (2) cheque was stolen. He
contends that notice had been issued by registered post
and also under certificate of posting. As postal
acknowledgement and cover have not been returned, a
complaint was made to the postal authorities and in
response to that, postal authorities intimated, by
communication dated 26.05.2010, that the article was
delivered to the addressee on 03.04.2010. He contends
that the respondent - accused has not disputed the
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address mentioned in the legal notice. He further contends
that even though he has taken up a defence that cheque
had been stolen, no complaint has been filed by the
respondent - accused against the appellant - complainant
for having stolen the cheque. The respondent - accused
has not entered the witness box. Even the respondent -
accused has disputed that the cheque does not bear his
signature. But, evidence of D.W.1 - Bank officer itself
show that the cheque had been dishonoured not on the
ground that `signature differs', but it is on the ground of
`funds insufficient'. Ex.D.1 and Ex.D.2 are account
opening form and specimen signature card produced by
D.W.1. D.W.1 has denied the signature on Ex.P.1 -
cheque is different from signature found on Ex.D.2 -
specimen signature form. Therefore, evidence on record
will establish that the signature on the cheque is of
respondent - accused and therefore a presumption
requires to be drawn under Section 139 of the N.I. Act
that cheque had been issued to make payment of legally
enforceable debt. He relies upon the following judgments.
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i. P. Rasiya Vs. Abdul Nazer, LAW (SC) 2022-8-129
ii. Sri. A.M. Harish Gowda @ A.M. Harisha Vs. Sri.
Chaluvaraju H.S., Crl.R.P. 619/2021 decided on
04.06.2024
iii. Gajanan Vs. Appasaheb Siddamallappa Kaveri,
Crl.R.P. 2011/2013 decided on 18.11.2022
5. Learned counsel for respondent - accused would
contend that the signature on the cheque and service of
notice has been disputed by the respondent - accused. The
sale deed Ex.P.10 is dated 26.03.2010 and entire sale
consideration of Rs.45,00,000/- has been received on
25/27.03.2010 and therefore, the contention of the
appellant - complainant that he had received the advance
amount during September, 2009 and out of that he had
lent the amount to the respondent - accused is false. He
contends that in the cross-examination P.W.1 has
admitted that he had not sold the property during
September 2009. The said sale deed Ex.P.10 has been
executed subsequent to the alleged lending of money. The
appellant - complainant has not produced any sale
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agreement to show that he had received advance sale
consideration. Taking into consideration the said aspect
the first Appellate Court has rightly re-appreciated the
evidence on record and acquitted the respondent -
accused. With this, he prayed to dismiss the appeal.
6. Having heard learned counsel for the parties,
considering the grounds urged and on perusal of the
records, the following point arises for my consideration:
"Whether the First Appellate Court erred in
acquitting the respondent accused for offence
under Section 138 of the Act?
7. My answer to the above point is in the
affirmative for the following reasons:
It is the specific case of appellant - complainant that he
had lent Rs.3,00,000/- to the respondent accused during
September 2009 and for making repayment of the same,
the respondent - accused had issued a cheque - Ex.P.1
dated 28.01.2010. The respondent - accused who had
disputed his signature on the cheque - Ex.P.1 has not
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entered the witness box to establish the same. The
evidence of D.W.1 - the bank official indicates that cheque
Ex.P.1 which was drawn on the account of respondent -
accused was dishonoured for want of funds in the account
of respondent - accused and it was not dishonoured as
signature on the cheque differs. The said aspect itself will
indicate that the signature on Ex.P.1 - cheque is that of
the respondent - accused. As signature on Ex.P.1 is that of
respondent - accused, a presumption requires to be drawn
under Section 138 of the N.I. Act that cheque had been
issued for making payment of legally enforceable debt or
liability. Said presumption is a rebuttable presumption. It
is for the respondent - accused to rebut the said
presumption by leading appropriate evidence. The
respondent accused, to rebut the said presumption, has
not entered the witness box and he only relied on the
cross examination of P.W.1. There is suggestion in the
cross examination to P.W.1 that cheque had been stolen
but no complaint was lodged in that regard.
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8. Merely because source of money which is lent is
not shown will not rebut the presumption raised under
Section 139 of the N.I. Act. Ex.P.10 is the sale deed under
which the appellant - complainant has sold his property for
sale consideration of Rs.45,00,000/- which he received
through DD and also by way of cash on the date of sale
deed. P.W.1 in his cross examination even though has
admitted that sale deed is executed subsequent to lending
of money to the respondent accused, has further stated
that there were talks of sale and he had received the
advance amount. Merely because he has not produced the
sale agreement to show that he had received the advance
amount will not rebut the presumption raised under
Section 139 of the N.I. Act.
9. The respondent - accused has disputed the
service of legal notice Ex.P.3. Ex.P.3 has been issued by
registered post and also under certificate of posting and
postal receipt - RPAD receipt is at Ex.P.4 and certificate
posting is at Ex.P.5. Respondent - accused has not
disputed his address as shown in Ex.P.3, Ex.P.4 and Ex.P5.
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As the postal acknowledgment and postal cover were not
returned, in that regard a complaint was made as per
Ex.P.5 to the postal authorities and the postal authorities
in their communication dated 25.06.2010, which is at
Ex.P.6 have stated that article has been delivered to the
addressee on 03.04.2010. Said aspect itself will establish
that legal notice Ex.P.3 has been served on the respondent
- accused. Therefore, the evidence on record will not rebut
the presumption raised under Section 139 of the N.I. Act.
Respondent - accused has not examined himself to
establish his defence. Considering the said aspect the trial
Court has rightly convicted the respondent - accused for
offence of the Section 138 of the N.I. Act.
10. The first Appellate Court erred in acquitting the
respondent - accused for offence under Section 138 of the
N.I. Act. The first Appellate court has not re-appreciated
the evidence on record properly. The evidence on record
will establish that the cheque - Ex.P.1 was issued by the
respondent - accused for making payment of legally
enforceable debt to the appellant - complainant and it was
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dishonoured for want of funds. Inspite of service of notice,
the respondent - accused has not repaid the cheque
amount and has committed offence under Section 138 of
the N.I. Act. Therefore, the judgment of the first Appellate
Court requires to be set aside and the judgment of
conviction passed by the trial Court requires to be
affirmed.
11. In the result the following;
ORDER
i. The appeal is allowed.
ii. The judgment of acquittal dated 10.04.2015 passed
in Crl.A. No. 711/2014 by LXIV Additional City Civil
and Sessions Judge, Bengaluru is set aside.
iii. The judgment of conviction dated 16.06.2014 passed
in C.C. No. 29010/2011 by XIII Additional Chief
Metropolitan Magistrate, Bengaluru is affirmed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
LRS
